Nineteenth-Century British and American Copyright Law

hat we term "copyright" is understood as as international system that legally protects the rights of an author or owner of published and unpublished works, including letters and playscripts, against plagiarism, or other unauthorised reproduction or publication of that work. No sooner had William Caxton set up his printshop in London that an act (I Richard. 3 c. 9) was passed to regulate the British book-trade. This Tudor statute permitted the importation of foreign books because the legislators of the late fifteenth and early sixteenth England believed that such a practice would encourage the growth of learning. Until 1709 copyright was legally available only to printers and publishers, who regarded copyrights as perpetual investments. The 1709 Statute of Queen Anne first made it legal for anyone--even a writer--to own a copyright, but only for fourteen years (or twenty-eight, if the author survived the first fourteen). The Copyright Acts of 1709, 1814, and 1842 increased the duration of protection from fourteen, to twenty-eight, to forty-two years respectively. George III re-established the concept of perpetual copyright in law, but only for the universities of the United Kingdom, whose libraries enjoy the right of "demand" --i. e., the right to require from a British author a copy of his published work. Between 1735 and 1875, no less than thirteen parliamentary acts governed the legal application of copyright in the United Kingdom. The chief of these was the 1844 Act (5 & 6 Victoria c. 45), otherwise known as The Copyright Amendment Act or The Imperial Copyright Act or (after the British parliamentarian responsible for its introduction) The Talford Act, which was not repealed for 63 years and so was in full effect through the nineteenth century in Great Britain.

The principle of linking copyright and lifespan was further extended to an author's lifetime plus fifty years in 1911. Reciprocal copyright treaties with other nations were authorized by statute in 1838 and 1844. The most important of these early reciprocal accords was that between Britain and Prussia in 1846, which eventually led to The Berne Convention of 1886. However, American publishers continued to regard the work of a foreign (i. e., non-resident) author as unprotected 'common' property. Thus, although the Berne Convention greatly simplified the copyright process among European nations, numerous unauthorized American re-prints continued to appear until 1891, when the United States finally agreed to discontinue sanctioning literary piracy. In 1896 the American Congress joined the international copyright union, after petitions directed at it by such noted British novelists as Maria Edgeworth, Benjamin Disraeli, and Charles Dickens, beginning in 1837. Their pleas had fallen on deaf ears in the American government until joined by those of Americans such as Mark Twain, who complained that he was fed up with publishers' ignoring American works in favour of those of English writers, whose books could be re-printed more cheaply because there were no royalty costs. A further point of exacerbation for Twain was Canadian piracies of his works, which he attempted to prevent by establishing temporary residence in Canada on the date of publication of each of his works.

The absence of international copyright laws allowed Canadian publishers to prey on Mark Twain's early books. He was hurt badly in 1876, when the Toronto publisher Charles Belford issued Tom Sawyer before the American edition even appeared. To combat this problem, Mark Twain spent several weeks in Montreal in November-December 1881 with James R. Osgood to meet a residency requirement to protect his The Prince and the Pauper copyright. (Rasmussen 54)

Concerns about Canadian piracies of works by American authors created as much tension in the United States in the second half of the nineteenth century as those about American piracies of works by British authors had created in the United Kingdom in the first half. "It was a tug of war between novelists and printing unions more than a century ago that led to the 1891 manufacturing clause of the U. S. Copyright Act" (O'Neill), a clause that resulted in fresh acrimony during the Canadian-American Free Trade negotiations in 1986.

The First International Copyright Act — Victorian Britain

Victorian Britain has the honours with respect to two publishing firsts: the postage stamp and the international copyright act. Victoria's 1 & 2 c. 59 (1838) was in fact the world's first copyright act in the modern sense, although the term "copyright" itself first occurs in that act's revision, 7 & 8 Victoria c. 12 (1844). While the English, eager to encourage literacy, had reluctantly enacted 8 Anne c. 19 in 1709, the French after the 1789 believed in a tous la liberté, that is, the abolition of exclusive (royal) license and the universal granting of each man his copy. Meanwhile, the Americans after their own revolution developed a nationalistic and protectionist attitude that one might style My Country, 'tis of Thee. The interaction of the three modes of thought in the nineteenth century was often awkward. The typical British publisher wanted protection for his copyrights (which he bought from young, budding authors such as Charles Dickens was in the 1830s) to keep his business competitive with piratical, protectionist Yankee publishers, while the average British author desired to have his or her natural right in intellectual property acknowledged the world over, a concept inherent in the French model of copyright. Throughout Victoria's long reign, parliament attempted to harmonize these three perspectives.

As opposed to the policies that American legislators enshrined in law to protect the wages of their nation's printers, the act of 1838 empowered the Crown to grant the authors of books published in foreign countries the same rights enjoyed by British writers publishing in the United Kingdom. Another aspect of the principle of encouragement of learning inherent in British copyright was that, from 1842, the British Museum was to receive a copy of any book printed in London or elsewhere in the United Kingdom within three months of its publication, but within a year if published in the British dominions overseas.

However, threatened by the possibility of cheap American imports, British publishers became protectionist, too: section 17 of the 1842 copyright amendment, for example, directed customs officers to seize imported, unauthorized re-prints and to distribute such works to lightships and lighthouses. As a result of an error in drafting this provision, this seizure and distribution did not apply to Britain's colonies, notably Canada, who continued to import cheap American books even after the 1845 Customs Act attempted to close the loophole. The Foreign Re-prints Act (1847) acknowledged the futility of trying to stem the tide of American books washing across the world's longest undefended border, but it sought to compensate British authors for Yankee violations of their copyright by collecting customs duties on such re-prints. However, as a result of Canadian customs officials usually turning a blind eye to such imports as were destined for libraries and educational institutions, the British act failed to prevent the importation of cheap American re-prints into Canada.

British publisher John Murray, deciding that if the colonials wanted cheap books it would be he rather than some neo-Ben Franklin who would supply them, between 1843 and 1849 put out some thirty-seven volumes in his 'Colonial and Home Library'. However, because American publishers were not paying British writers royalties and Murray was, the bargain-basement prices of American books ruined the scheme. If the average British publisher found himself unable to win the battle of the books in Canada, many a British author won limited engagements on the Continent thanks to Germany's Tauchnitz family. However, even the wily German book-sellers could not penetrate the American market, for while, as of 1777, a foreigner might safely publish in Britain (in fact, as of 1835 he need not even be resident in the United Kingdom, providing his work were first published in Britain before any other country--a provision that Mark Twain made skillful use of in the case of Adventures of Huckleberry Finn in 1886), the British author did not gain the protection of American copyright even after a year's residence in the United States. After his 1837 American tour, Captain Marryat, author of such popular boys' adventure books as Mr Midshipman Easy (1834), discovered after litigation that American copyright protection was extended only to those foreign authors who were prepared to renounce their original citizenship and become Americans. He returned to his native Britain chagrined and empty-handed in 1843.

Even though American publishing houses paid their printers higher wages than those received by their British counterparts, even the parsimonious Tauchnitz could not undersell American publishers because the ingenious Yankees did not pay foreign authors any royalties or commissions. Thus, Tauchnitz asserted that from the earliest days of nineteenth-century copyright, they never sent even a single British copyright work to a British territory such as Canada without the expressed request of the British copyright proprietor (whether author or publisher), a practice which British law did permit.

The Chace Act (U. S. A.)

Throughout the nineteenth century, the easiest way for a British author to secure American copyright protection was to have an American citizen serve as a collaborator in the publishing process (the American usually wrote a short preface), then have the book registered in Washington, D. C., under the collaborator's name. Rudyard Kipling, offered such an arrangement by his American publisher, refused, but authors as eminent as Thomas Henry Huxley acceded. In the United States, up to the passing of the Chace Act (1891), this would be the publication timetable for a British writer attempting to secure American copyright protection for a new work:

1. deposit a copy of the title page with the authorities in Washington;

2. have the work published in Great Britain;

3. within ten days of publication in the U. K., have the American edition issued, and copies deposited at appropriate offices on both sides of the Atlantic;

4. deposit a copy of the work within a month of British publication;

5. optional registration of the work at Stationer's Hall, London, any time after British publication.

The Chace Act, however, complicated the timetable since it required the deposit of the new work in Washington "on or before the day of publication in this or any foreign country" (Nowell-Smith 65). About twenty years later, an amendment made it possible once again for British authors to obtain American copyright since it permitted an English-language work published abroad an interim copyright of thirty days from its deposit in Washington, allowing an American publisher that period to issue an authorized edition. However, prior to 1891 there was no legal requirement that a book be strictly of American manufacture, so that books destined for the U. S. market might be typeset in Britain and then either plates or already printed sheets shipped to the United States. Under British law, no copyright notice was required of a publisher, but if a printing house were not careful sheets prepared for the British market without the appropriate copyright notice on the title-verso might end up in the United States. A book assembled from such sheets could be pirated by another American publisher, although in theory "trade courtesy" prohibited such unfair dealing.

Australia and Canada

Although the Australian market was targeted by American publishers, the distance between them and their customers on the great southern continent inhibited that trade in a way that the freezing of the St. Lawrence River and the Great Lakes did in terms of supplying Canadians with cheap American re-prints. Only two years after the British North America Act created Canada out of Quebec, Ontario, and the Atlantic seaboard colonies, Canadian publishers proposed to the Dominion government that they be authorized to re-print British copyrighted works at will if they paid the British authors involved a royalty of 12.5% as a kind of excise tax. Suspecting that these re-prints would find their way into other colonial markets, Westminster refused to ratify an 1872 Dominion of Canada bill that enshrined this fixed-royalty principle. However, in 1875 the British parliament did agree to ratify a second bill that the Canadian government forwarded (38 Victoria c. 88). This statute licensed Canadian firms to re-publish British books that had gone out of print, and protected British and other authors against the importation into the Dominion of pirated works. However, Westminster acceded to this bill only after it had banned unauthorized importation of Canadian editions into the United Kingdom.

Anticipating that the American government would could continue its protectionist publishing policies, Ottawa in 1889 passed an act requiring that, in order to secure Canadian copyright, a book would have to be published in Canada within one month of its publication elsewhere; otherwise, that book (in intent, that American book) would be considered common property in Canada, which meant it could be re-published without penalty by any Canadian firm. Eventually, after Westminster had refused to sanction this act, Ottawa retaliated by refusing to accede to the terms of the 1911 Imperial Copyright Act (1 & 2 George V c. 46), to which Canada did not conform until 1924.

A consequence of this legal tangle and the American Chace Act was a distinction between Canadian and other Commonwealth copyrights. Cutting costs whenever possible, Canadian publishers would often import sheets directly from the United States rather from the United Kingdom in order to save on shipping costs. If a book to be published in the United States were advertised as having a purchase price of an American dollar,

Canadian booksellers would expect to pay $1.00 less 40 per cent as against 6s. less 30 (or possibly 40) per cent plus freightage. Even a colonial library novel at 3s. 6d. could not compete, and in any case the British author would prefer to receive 15 per cent on American copies sold in Canada at $1.00 rather than 4d. a copy on a colonial library copy . . . .(Nowell-Smith 103)

Because Australia had developed its publishing industry in a different way from that of Canada, it found little difficulty in accepting the 1911 act. While in the 1870s British exports of books to the United States ranged in annual value between £200,000 and £300,000, British books exported to Canada jumped in value from £53,000 in 1870 to £70,000 in 1876; in contrast, the Australian market for British books in that same period grew by about 150%, from under £130,000 in 1870 to over £330,000 by 1876, while the North American market for British publications (owing to American publishing) declined. London publishers exported their wares to the lucrative Australian market through wholesale houses, whose agents travelled throughout that continent's colonies in search of wholesale buyers. George Robertson and Company, a Melbourne wholesaler, maintained a London office through which it distributed British books to Sydney, Adelaide, Brisbane, and Auckland, New Zealand. After 1884, such British publishers as Cassell, Ward, Lock, and Macmillan set up full-scale offices in Melbourne with their own staff to compete directly with Robertson.

Magazines and Newspapers

Another issue close to the hearts of such late Victorian serial novelists as Thomas Hardy, Wilkie Collins, and Joseph Conrad was the importation of American magazines and newspapers carrying British-authored serial fiction. For Australian authors publishing in this manner, there was Australian but not British copyright protection. Most penalized by this loophole was the Australian writer Thomas Alexander Browne, whose nom de plume was Rolf Boldwerwood; however, it also affected young Rudyard Kipling, whose early works, published in India, were unprotected elsewhere. However, after the Berne Convention and complementary British legislation (49 & 50 Victoria c. 33), the British pirating of colonial works ended because the new provisions of British legislation extended copyright protection throughout the Empire and Commonwealth. In 1909, the British Museum contested in court the exemption of colonial works from its registry, and won the case. Thus stood the copyright situation for the United States, Canada, Australia, Great Britain and her other colonies at the close of Victoria's reign.